Henderson v Morgan - [2013] NZHC 1010

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IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV 2012-412-000141

[2013] NZHC 1010

BETWEEN
HENDERSON

Appellant

AND

MORGAN

Respondent

Hearing: 3, 4, 5 and 10 April 2013

Counsel:

L A Andersen for Appellant R Cardoza for Respondent

N Williams, Lawyer for the Children A Chan, Lawyer to Assist the Court

Judgment:

9 May 2013

JUDGMENT OF HEATH J

This judgment was delivered by me on 9 May 2013 at 9.00am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Contents

The appeal

[1]

Background [4]

Appellate review principles [12]

The Family Court’s judgment

(a)       The “interim” care judgment

[16]

(b)       The 2010 judgment [20]

(c)       The 2012 judgment [27]

The grounds of appeal [30]

Updating evidence [32]

Relocation cases: legal principles [34]

Positions taken by Lawyer for the Children and Lawyer

Assisting the Court

(a)Introductory comments  [45]
(b)Submissions of Lawyer Assisting the Court  [47]
(c)Submissions of Lawyer for the Children  [49]

Dr Smith’s evidence [51]

Assessment of “best interests” factors  [56]
Analysis
(a)The primary care appeal  [76]
(b)The contact order appeal  [92]

Result [97]

The appeal

[1] Post-separation disputes about the day-to-day care of children can be difficult to resolve. Those cases in which one parent has moved his or her home to a distant location involve a heightened degree of difficulty. That form of dispute becomes even more acute when the parent who does not have day-to-day care of the children may not have the financial resources to exercise regular contact with the children. This case falls into the latter category.

[2] Mr Morgan and Ms Henderson married on 2 April 1994, and separated in May 2005. They have four children, two of whom are now adults. Mr Morgan lives with the two younger children in Levin. Ms Henderson resides in Paihia.

[3] Ms Henderson appeals against a decision of the Family Court¹ which had the effect of changing existing day-to-day care arrangements, in respect of the two younger children, Alan and David, now aged 13 and 8 years respectively. She challenges Judge Coyle’s decision to place those children in the primary day-to-day

1 [footnote omitted]. Relevant parts of the orders are set out at para [29] below.

care of her former husband. If Ms Henderson’s primary appeal were unsuccessful, she contends that the contact she is permitted with the boys should be increased.

Background²

[4] After Mr Morgan and Ms Henderson separated, Mr Morgan had no contact with the two younger boys for some two years. During that time, he was away from Levin. On his return, he applied for a parenting order granting contact in his favour. While Mr Morgan’s application was pending Ms Henderson moved, with Alan and David, to Paihia. Although that was done without consultation with Mr Morgan, it was a step that Ms Henderson had been contemplating for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Henderson v Morgan

Details

AGLC: Henderson v Morgan [2013] NZHC 1010
Case: [2013] NZHC 1010
Decision Date: 9 May 2013

CaseChat Overview and Summary

Henderson appeals against a decision of the Family Court which changed the existing day-to-day care arrangements of their two younger children, Alan and David. The Family Court had ordered that the children should remain in Levin, New Zealand, with their father, Mr Morgan, and that their mother, Ms Henderson, should have contact with them. Ms Henderson contends that the Family Court erred in declining to permit relocation to Paihia and that the contact arrangements should be increased. The appeal raises the question of where the children’s best interests lie. The appeal was heard over several days in April 2013. The appeal concerns the best interests of Alan and David. Those interests are best served by stability, continuity and the fostering of existing relationships. In particular, the children’s relationship with their father, Mr Morgan, is of paramount importance. The children have a primary attachment to their mother, Ms Henderson. While the children wish to live with their mother, their best interests lie with their father. The children’s views are not compelling enough to outweigh the other considerations. Mr Morgan is better placed to assist Alan as he reaches adolescence and moves towards adulthood. He has recognised Alan’s need to gradually become more independent and is encouraging him in that direction. The appeal on the primary care issue will be dismissed. The Court will hear further submissions on the terms of the contact orders that should be made.

Orders